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Searcy v. Ocwieja

April 12, 2010

LAVELLE SEARCY, PETITIONER,
v.
JOHN OCWIEJA, RESPONDENT.



The opinion of the court was delivered by: Honorable Stephen J. Murphy, III

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Lavelle Searcy has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Searcy is currently incarcerated pursuant to convictions for breaking and entering a building with intent, attempted breaking and entering a building with intent, possession of burglar's tools, and possession of a controlled substance analogue. He challenges the sentencing court's failure to provide him credit for the time he served in jail awaiting sentencing. For the reasons set forth below, the Court denies the petition.

I.

On February 6, 2007, Searcy pleaded guilty but mentally ill to attempted breaking and entering a building with intent, possession of burglar's tools, and possession of a controlled substance analogue. On the same date, in a consolidated case, Searcy pleaded guilty but mentally ill to breaking and entering a building with intent. He was sentenced on March 13, 2007, to 24 to 60 months' imprisonment for the attempted breaking and entering conviction, 24 to 120 months' imprisonment for the breaking and entering conviction, 24 to 120 months' imprisonment for the possession of burglar's tools conviction, and 15 to 24 months' imprisonment for the possession of a controlled substance conviction.

Searcy filed a request to grant jail credit in the trial court, arguing that he should have been awarded 211 days credit for time served from the date of his arrest on August 13, 2006 until the date of sentencing. The trial court denied the motion and a subsequent motion for reconsideration because Searcy was on parole at the time he was arrested and, therefore, was not entitled to credit against his sentences for the time he was held on a parole detainer. People v. Searcy, No. 2006-3793-FH, 2007-0052-FH (Macomb County Circuit Court July 26, 2007).

Searcy filed an application for leave to appeal in the Michigan Court of Appeals, raising the following claim:

Where the 211 days served by Mr. Searcy (prior to sentencing) was not required in service toward his sentence on the paroled offense, is Mr. Searcy entitled to have the 211 days credited toward his sentences for the instant offense?

The Michigan Court of Appeals denied leave to appeal. People v. Searcy, No. 282489 (Mich. Ct. App. Jan. 14, 2008).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the following claims:

I. Defendant-appellant is entitled for credit for the time spent in jail prior to sentencing.

II. Ineffective assistance of appellate counsel.

The Michigan Supreme Court denied leave to appeal, People v. Searcy, 480 Mich. 1189 (2008), and denied a motion for reconsideration. People v. Searcy, 482 Mich. 899 (2008).

Searcy then filed the pending petition for a writ of ...


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